The New Case: Flatt v. Canada (Attorney General) (Federal Court of Appeal, 2015).
The Issue:
The employee was blessed with a new baby. She requested the employer to allow her to work from home (teleworking) on the basis that she wished to breastfeed her new baby. The employer said no. The employee then grieved, alleging discrimination against her on the grounds of sex and family status (because the employer refused her request and would not accommodate her).
The Decision:
Not discrimination. The employees request to telework to accommodate her plan to breastfeed was not granted. The Court determined that breastfeeding is a personal choice, not a legal one. Ultimately, the mother employee could not satisfy the Court on the points of law necessary to establish discrimination on this basis and, therefore, she did not succeed.
The Implication:
The case does not stand for the proposition that a mother cannot breastfeed a baby at or during work. Rather, it establishes that breastfeeding is a personal choice and, unless an employee can prove the required elements of discrimination based on sex or family status, employers can take this position with respect to breastfeeding.
Effectively, a mother employee will need to establish why her choice to breastfeed is truly necessary, not merely a personal choice by her. This may require, for example, medical or other evidence. The case does not close the door on discrimination-based claims based on breastfeeding in the workplace, but does make such future claims more challenging. Accommodation in the workplace remains an important objective, but in this case not all accommodation is necessary.
While the Court lauded the mothers choice to breastfeed, it is did not accept that it legally required accommodation by her employer.
The case, undoubtedly, will create some controversy, beyond legal debate.
Also, this was decided at the federal level, not the Ontario level (such as, pursuant to Ontarios Human Rights Code). This must be considered in terms of whether the same result would happen in Ontario. Likely that is the case, but possibly not. Well have to wait and see.
This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
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